Citation Nr: 9837874
Decision Date: 12/30/98 Archive Date: 01/05/99
DOCKET NO. 97-05 060 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder.
2. Entitlement to service connection for arthritis of the
cervical spine.
3. Entitlement to service connection for a disorder of the
thoracic spine.
4. Entitlement to service connection for peripheral
neuropathy.
5. Entitlement to service connection for gastroesophageal
reflux disease.
6. Entitlement to service connection for labyrinthitis.
7. Entitlement to service connection for headaches.
8. Entitlement to service connection for osteomyelitis of
the jaw.
9. Whether new and material evidence has been submitted to
reopen a claim for service connection for an ear infection.
10. Entitlement to an increased evaluation for tinnitus,
currently evaluated as 10 percent disabling.
11. Entitlement to an increased evaluation for chronic low
back strain, currently evaluated as 20 percent disabling.
12. Entitlement to a total compensation rating based upon
individual unemployability.
REPRESENTATION
Appellant represented by: John Stevens Berry, Attorney
ATTORNEY FOR THE BOARD
Ralph G. Stiehm, Associate Counsel
INTRODUCTION
The veteran had active service from November 1964 to February
1973, and from December 1980 to January 1981. This case
comes before the Board of Veterans' Appeals (Board) on appeal
from various rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.
Entitlement to service connection for post-traumatic stress
disorder and peripheral neuropathy are addressed in the
REMAND portion of this decision, as are entitlement to an
increased evaluation for low back strain and entitlement to a
total compensation rating based on individual
unemployability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he suffers from a number of
disorders that allegedly had their onset in or otherwise are
attributable to service. He contends, in this respect, that
service connection is warranted for cervical spine arthritis
and a thoracic spine disorder. He also seeks service
connection for peripheral neuropathy which he attributes
alternatively to his service-connected low back disability
and to Agent Orange exposure in service. In addition, he
seeks service connection for gastroesophageal reflux disease,
labyrinthitis, headaches, and osteomyelitis of the jaw. He
also claims that service connection is warranted for an ear
infection or otitis. Finally, the veteran contends that the
current evaluation for his service-connected tinnitus does
not accurately reflect the severity of that disability and
that he is totally disabled as a result of his service-
connected disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
evidence of well-grounded claims for service connection for
arthritis of the cervical spine, a disorder of the thoracic
spine, gastroesophageal reflux disease, labyrinthitis,
headaches, and osteomyelitis of the jaw. It is also the
decision of the Board that the claims file does not present
new and material evidence to reopen the veteran’s claim for
service connection for an ear infection and that the October
1992 rating decision which denied service connection for that
disorder remains final. Finally, it is the decision of the
Board that that the preponderance of the evidence weighs
against the veteran’s claim for an increased evaluation for
tinnitus.
FINDINGS OF FACT
1. There is no competent medical evidence linking cervical
arthritis to service.
2. There is no competent medical evidence linking a thoracic
spine disorder to service.
3. There is no competent medical evidence linking
gastroesophageal reflux to service.
4. There is no competent medical evidence of labyrinthitis.
5. There is no competent medical evidence linking headaches
to service.
6. There is no competent medical evidence of osteomyelitis
of the jaw.
7. An unappealed October 1992 rating decision denied service
connection for an ear infection.
8. The evidence associated with the claims file subsequent
to the October 1992 rating decision, when viewed in
conjunction with the evidence previously of record, is not so
significant that it must be considered in order to fairly
decide the merits of the claim.
9. The veteran’s service-connected tinnitus is manifested by
a persistent ringing which is a symptom of acoustic trauma.
CONCLUSIONS OF LAW
1. The veteran’s claim of entitlement to service connection
for arthritis of the cervical spine is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
2. The veteran’s claim of entitlement to service connection
for a disorder of the thoracic spine is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
3. The veteran’s claim of entitlement to service connection
for gastroesophageal reflux disease is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
4. The veteran’s claim of entitlement to service connection
for labyrinthitis is not well grounded. 38 U.S.C.A. § 5107
(West 1991).
5. The veteran’s claim of entitlement to service connection
for headaches is not well grounded. 38 U.S.C.A. § 5107 (West
1991).
6. The veteran’s claim of entitlement to service connection
for osteomyelitis of the jaw is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
7. The evidence received since the October 1992 rating
decision, which denied service connection for an ear
infection is not new and material, and the veteran’s claim
for that benefit may not be reopened. 38 U.S.C.A. §§ 5107,
5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103
(1998).
8. A rating in excess of 10 percent for tinnitus is not
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.1-4.14, 4.87a, Diagnostic Code 6260 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for Multiple Disorders
Service connection may be granted for a disorder that was
incurred in or aggravated during the veteran's active duty
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Arthritis is presumed to have been incurred in service if it
is manifested within a year of separation from service to a
degree of 10 percent or more. 38 U.S.C.A. §§ 1101, 1112,
1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service
connection may be granted for any disease diagnosed after
discharge, when the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
The initial inquiry in reviewing any claim before the Board
is whether the veteran has presented evidence of a well-
grounded claim; that is, one that is plausible or capable of
substantiation. The veteran carries the burden of submitting
evidence “sufficient to justify a belief by a fair and
impartial individual that the claim is well-grounded.”
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78,
81 (1990). If he has not presented a well-grounded claim,
his appeal must fail. While the claim need not be
conclusive, it must be accompanied by supporting evidence; a
mere allegation is not sufficient. Tirpak v. Derwinski, 2
Vet. App. 609, 611 (1992).
A well-grounded claim for service connection requires that
three elements be satisfied. First, there must be competent
evidence of a current disability, as established by a medical
diagnosis; second, there must be competent evidence of an
incurrence or aggravation of a disease or injury in service,
as established by lay or medical evidence, as appropriate;
third, there must be competent evidence of a nexus or
relationship between the in-service injury or disease and the
current disorder, as established by medical evidence or a
medical opinion. See generally Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table); see also
Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993).
In addition, in Savage v. Gober, 10 Vet. App. 488 (1997), the
United States Court of Veterans Appeals held that:
The chronicity provision of [38 C.F.R.]
§ 3.303(b) is applicable where evidence,
regardless of its date, shows that a
veteran had a chronic condition in
service or during an applicable
presumption period and still has such
condition. Such evidence must be medical
unless it relates to a condition as to
which, under the Court’s case law, lay
observation is competent. If the
chronicity provision is not applicable,
a claim may still be well grounded or
reopened on the basis of § 3.303(b) if
the condition is observed during service
or any applicable presumption period,
continuity of symptomatology is
demonstrated thereafter, and competent
evidence relates the present condition to
that symptomatology.
10 Vet. App. at 498.
A. Cervical Spine Arthritis
The veteran had active service from November 1964 to February
1973, and from December 1980 to January 1981.
Current evidence associated with the claims file, including a
February 1996 report of a radiographic examination, reflect
the presence of degenerative changes of the cervical spine.
In addition, subsequent records, including a June 1996
examination report, also make reference to disc disease of
the cervical spine. However, service medical records contain
no reference to arthritis or any degenerative changes,
cervical or otherwise, and there is no medical evidence of
arthritis within a year of the veteran’s separation from
service. In fact, the February 1996 report, appears to
constitute the earliest confirmation of degenerative changes
contained in the claims file.
In addition, the claims file contains no medical opinion
linking degenerative disc disease or arthritis of the
cervical spine, diagnosed many years after service, to an
injury or disease in service or to any other service
connected disease. A February 1996 report reflects an
opinion that the veteran’s cervical pathology “could be from
the injury [he] reports occurred in 1965.” However, the
United States Court of Veterans Appeals has held that an
opinion expressed in terms of “may” also implies “may or
may not” and is too speculative to establish a plausible
claim. See Bostain v. West, 11 Vet. App. 124, 127-28
(1998)(citing Obert v. Brown, 5 Vet. App. 609, 611 (1992),
and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992)). The
February 1996 opinion thus provides an insufficient predicate
upon which to establish the presence of competent evidence
linking the veteran’s pathology to service. Without such
evidence, the veteran’s claim for service connection for his
disability is not well grounded. Epps, supra.
B. Thoracic Spine Disorder
In January 1997, an examiner diagnosed degenerative disc
disease of the thoracic spine. However, there is no
competent evidence linking that disorder to service. Service
medical records reflect that in December 1980, the veteran
complained of low back pain radiating up to the midline of
the thoracolumbar spine area. The diagnoses at that time
included low back pain, mechanical. Service medical records,
however, do not contain any findings of degenerative disc
disease of the thoracic spine or otherwise expressly identify
a pathology of the thoracic spine. An examination earlier
that same month, moreover, revealed no abnormality of the
thoracic spine. Although the veteran apparently stated
during the earlier examination that he suffered from
myofascial strain with degenerative disc disease, there is no
indication that a physician or other medical professional
came to the same conclusion. See Caluza v. Brown, 7 Vet.
App. 498, 504 (1995)(“Where the determinative issue involves
either medical etiology or a medical diagnosis, competent
medical evidence is required to fulfill the well-grounded
claim requirement of section 5107(a).”).
Furthermore, other than the January 1997 entry, records of
treatment after service similarly do not identify a pathology
of the thoracic spine. Notably, a February 1996 X-ray
examination of the thoracic spine was normal. In addition,
there is no medical opinion linking the diagnosis of
degenerative disc disease of the thoracic spine to service.
Without any competent medical evidence linking the current
disorder to service, the veteran’s claim for service
connection for that disorder is not well grounded. Epps,
supra
C. Gastroesophageal Reflux
During a VA examination in March 1996, the veteran complained
of a history of heart burn and indicated that he suffered
from water brash acid taste in the back of his throat for
several years. An examiner diagnosed gastroesophageal reflux
disease with possible peptic stricture.
Although the veteran seeks service connection for this
disability, service medical records are devoid of any
reference to gastroesophageal reflux and records of treatment
after service associated with the claims file fail to
document a similar diagnosis prior to March 1996. A report
of a January 1973 separation examination notes the presence
of stomach trouble and indigestion. This information does
not constitute a diagnosis of a chronic gastrointestinal
disorder and does not provide a nexus between the veteran’s
active duty service and a current disability diagnosed many
years after service. Notably, moreover, according to a
handwritten note contained in the January 1973 report, an
earlier upper gastrointestinal examination revealed no
abnormality. Finally, the claims file contains no medical
opinion suggesting that the veteran’s disability had its
onset in service or otherwise linking the veteran’s
disability to service. Without competent medical evidence
linking a current disability to service, the veteran’s claim
for service connection is not well grounded. Epps, supra
The Board observes that although the January 1973 separation
examination contains what apparently is a history provided by
the veteran of an ulcer in 1966, there is no current medical
evidence that the veteran suffers from ulcer disease.
Moreover, an ulcer, if it existed at all, existed prior to
service, and there is no indication in the veteran’s service
medical records that he was treated for ulcers or that ulcers
otherwise were aggravated during service. Finally, the Board
notes that the mere transcription by a physician of a history
provided by the veteran does not elevate the history to
competent medical evidence of a disorder. As such, it can
not even be said that the claims file documents a diagnosis,
let alone a current diagnosis, of ulcer disease. Therefore,
service connection for gastrointestinal reflux due to
underlying peptic ulcer disease is also not well grounded.
Id.
D. Labyrinthitis
Service medical records and treatment records associated with
the claims file are devoid of any reference to labyrinthitis.
A January 1973 separation examination contains a reference to
otitis but there was no indication labyrinthitis at that time
and subsequent treatment records and records of examinations
associated with the claims file do not document the presence
of labyrinthitis or of a chronic ear infection. An April
1992 examination of the veteran’s ears revealed no active ear
disease or infectious disease of the middle or inner ear.
Subsequent examinations have also revealed no disease of the
ears, other than hearing loss and tinnitus for which service
connection is already in effect, and there is no medical
evidence of a current diagnosis of labyrinthitis. Without
any current medical evidence of the claimed disability, the
veteran’s claim for service connection for labyrinthitis is
not well grounded. Epps, supra.
E. Headaches
A March 1996 VA examination revealed a diagnosis of tension
headaches. There is no medical evidence, however, linking
this disorder to service. Service medical records do not
document treatment for a headache disorder and records of
treatment after service do not otherwise document ongoing
treatment after service for such a disorder. The veteran is
certainly competent to state whether he had or continues to
have headaches but he is not competent to opine that there is
a nexus between his headaches and service. That is, being a
layman, he is not competent to give an opinion regarding
medical causation, and his statements on such matters do not
serve to make the claim well grounded. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). The claims file contains
no medical opinion linking the veteran’s tension headaches
either to another disability or to an event in service.
Without competent evidence of a nexus to service, the
veteran’s claim for service connection for headaches is not
well grounded. Epps, supra.
F. Osteomyelitis of the Jaw
Service medical records reflect that the veteran, in March
1971, was treated for osteomyelitis secondary to alveolitis.
Service medical records contain no further reference to
osteomyelitis. Records of treatment after service similarly
contain no evidence of recurrences of osteomyelitis of the
jaw. In April 1983, chronic periodontitis was diagnosed.
During a VA examination in March 1996, an examiner indicated
that he suspected the presence of ongoing intermittent
periodontitis and that he doubted the presence of
osteomyelitis. There is, as such, no competent evidence that
the veteran currently suffers from osteomyelitis, and his
claim for service connection for that disability is not well
grounded. Epps, supra.
G. Conclusion
The Board recognizes that with respect to the issues of
entitlement to service connection for arthritis of the
cervical spine and gastroesophageal reflux disease this
appeal is being disposed of in a manner that differs from
that used by the RO. The RO denied the veteran’s claims for
service connection for those disorders on the merits, while
the Board has concluded that the claims are not well
grounded. However, the Court has held that “when an RO does
not specifically address the question whether a claim is well
grounded but rather, as here, proceeds to adjudication on the
merits, there is no prejudice to the veteran solely from the
omission of the well-grounded analysis.” Meyer v. Brown, 9
Vet. App. 425, 432 (1996).
The Board observes that the veteran through his
representative may have requested additional development with
respect to his claims. In May 1996, the veteran’s
representative requested advisory medical opinions
concerning: (a) “the relationship between [the veteran’s]
service connected back condition and the degenerative
arthritis of the spine,” (b) “esophageal reflux disease,”
and (c) “osteomyelitis of the jaw.” Insofar at the
veteran’s claims are not well grounded, however, there is no
further duty to assist the veteran. See Epps v. Gober, 126
F.3d 1464, 1468-69 (1997); see also Slater v. Brown, 9 Vet.
App. 240 (1996); Franzen v. Brown, 9 Vet. App. 235 (1996).
II. New and Material Evidence to Reopen a Claim for Service
Connection for an Ear Infection
An October 1992 rating decision denied service connection for
an ear infection. At the time of that decision the Board had
before it service medical records that included a reference
in a January 1973 separation examination to otitis and a
history provided by the veteran at that time to an earlier
ear infection. Evidence also included an April 1992 VA
examination during which the veteran provided a history of
otitis media during service and which revealed the veteran’s
ears to be free of disease or infection. In denying service
connection for an ear infection, the RO indicated that there
was no evidence of a current disability.
Notice was sent to the veteran of the October 1992 decision,
and the veteran did not file and appeal; that decision,
therefore, is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§
3.104(a), 20.302, 20.1103.
The law provides that, except as provided in § 5108, when a
claim is disallowed by an agency of original jurisdiction,
the claim may not thereafter be reopened and allowed, and a
claim based upon the same factual basis may not be
considered. 38 U.S.C.A. § 7105. If new and material
evidence is presented or secured with respect to a claim
which has been disallowed, the claim shall be reopened and
the former disposition of the claim shall be reviewed.
38 U.S.C.A. § 5108.
"New and material evidence" means evidence not previously
submitted to VA decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant of prior evidence
and which, by itself, or in connection with evidence
previously assembled, is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a).
In order to be "material," evidence must be probative as to
each element which was a specified basis of the prior final
disallowance. Evans v. Brown, 9 Vet. App. 273 (1996); Hodge
v. West, No. 98-7017 (Fed. Cir. Sept. 16, 1998).
Since the October 1992 rating decision, the veteran has
undergone additional audiological and medical examinations.
However, none of the additional medical evidence reveals
findings suggestive of an ongoing ear infection, including
otitis media. Inasmuch any additional evidence associated
with the claims file fails to provide evidence of a current
disability, it fails to cure the defect in the veteran's
claim that was present at the time of the October 1992 rating
decision. The Board finds that this new evidence, in
connection with the evidence previously assembled, is not so
significant that it must be considered in order to fairly
decide the merits of the claim. The veteran's claim for
service connection for an ear infection is thus not reopened.
38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a).
III. Increased Evaluation for Tinnitus
Medical evidence shows that the veteran’s service-connected
tinnitus currently manifested by a persistent ringing and he
has an inservice history of acoustic trauma. However, the
disability is currently evaluated as 10 percent, which is the
maximum rating allowed under the applicable diagnostic code.
38 C.F.R. §§ 4.1-4.14, 4.87a, Diagnostic Code 6260. Although
the veteran claims that he is unable to maintain employment,
his complaints appear to be largely focused on a disability
of the back. There is no indication that the veteran’s
tinnitus renders him unable to pursue gainful employment or
would be expected to cause interference with employment
beyond that anticipated by the 10 percent rating in effect.
Further, there has been no showing that the disability under
consideration has necessitated frequent periods of
hospitalization so as to render the schedular standards
inadequate and to warrant assignment of an extra-schedular
evaluation. In the absence of such factors, the Board is not
required to remand this matter to the RO for the procedural
actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v.
Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet.
App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995). Therefore, this claim is denied.
IV. Hearing Request
As a final matter the Board observes that the veteran,
through his attorney, in an October 1997 letter requested a
hearing at the RO and the subpoena of a number of
individuals. In that letter, the veteran conditioned the
hearing upon the subpoena of the individuals in question.
Although 38 C.F.R. § 2.1 contains a delegation of authority
to issue subpoenas, that provision does not contain an
absolute right to the issuance of a subpoena in any
particular case. See also 38 U.S.C.A. § 5711 (West 1991). A
subpoena for a witness may be issued in the case of a witness
who resides within 100 miles of the location of the hearing,
if necessary evidence cannot be obtained in any other
reasonable way. 38 C.F.R. § 20.711.
However, with respect to those claims that are not well
grounded, the Board observes, as it did above, that the
veteran is entitled to no additional development by the VA as
a matter of law. Additionally, the veteran has offered no
evidence that he suffers from a current ear infection and he
has made no showing, or even allegation, that an extra-
schedular evaluation is warranted. The audiological
examinations provided the veteran appear thorough and provide
no reason to conclude that additional development is
necessary to properly adjudicate a claim before the Board.
Finally, the veteran or his representative has failed to
explain how the subpoena in question would advance his
claims in a way not otherwise reasonably available.
Therefore, the Board finds, at least with respect to those
issues currently being decided by the Board, that a subpoena
would serve no purpose and is not required.
ORDER
A claim for service connection for arthritis of the cervical
spine is denied.
A claim for service connection for a disorder of the thoracic
spine is denied.
A claim for service connection for gastroesophageal reflux
disease is denied.
A claim for service connection for labyrinthitis is denied.
A claim for service connection for headaches is denied.
A claim for service connection for osteomyelitis of the jaw
is denied.
New and material evidence not having been submitted to reopen
a claim for service connection for an ear infection, service
connection for that disorder remains denied.
A claim for an increased evaluation for tinnitus, currently
evaluated as 10 percent disabling, is denied.
REMAND
The veteran maintains that he suffers from post-traumatic
stress disorder as a result of stressors experienced during
service in Vietnam. In a February 1996 letter, the RO
requested the veteran to provide information concerning the
nature of his stressors. He did not respond to this request.
However, during a March 1996 VA examination, an examiner
diagnosed post-traumatic stress syndrome. During that
examination the veteran indicated that his unit had been
under heavy mortar fire on a number of occasions and that on
of those times, while on guard duty, he shot and killed the
unit barber who had been making his way to the camp. During
a contemporaneous examination by a readjustment counseling
specialist, the veteran reported that an unnamed captain was
killed during a mortar attack and that on one occasion the
veteran dove down during a mortar attack, cutting his hands
in the process. He indicated that on another occasion
someone discovered the body of a Vietnamese person who had
served as a barber and who had been shot the previous night
as he attempted to come “through the wire.” The veteran
also recounted an episode involving a soldier who, according
to the veteran, shot himself through the head.
While a subsequent VA psychiatric examination in May 1997
failed to result is a diagnosis of PTSD, it was recommended
in an addendum to that evaluation that the veteran be
reevaluated, and the examiner added that, while all of the
diagnostic criteria for PTSD were not present at that time,
the veteran did have some maladjustment difficulty related to
Vietnam.
It is the Board’s judgment that the veteran should be
afforded another VA psychiatric examination to determine if
he meets the diagnostic criteria for PTSD. The RO should
also contact the veteran in another attempt to obtain more
information regarding the veteran’s claimed inservice
stressors and refer a summary of what information the RO has
regarding the veteran’s claimed stressors and relevant
service personnel records to the USASCRUR for the purpose of
verification.
The veteran also seeks service connection for peripheral
neuropathy, which he has attributed alternatively to his
service connected back injury and to Agent Orange exposure in
service. Service medical records reflect that the veteran,
in December 1980, provided a history of transient paraplegia
occurring approximately quarterly since 1965, resulting in an
impression of musculoskeletal low back pain with periods of
paraplegia by history, as well as a diagnosis of transient
paraplegia by history.
Although the veteran did not articulate complaints involving
the legs during an April 1973 VA examination, during a May
1981 VA examination, the veteran, who denied loss of bowel or
bladder control, complained of numbness in both legs. He
articulated similar complaints in April 1983, indicating that
both legs felt numb and “asleep” upon arising in the
morning. Although the veteran denied weakness or numbness of
the legs during examinations in October 1991, during a July
1993 VA examination, the veteran complained that his legs
would “go to sleep . . . for no apparent reason.”
During a February 1996 examination, the veteran complained of
“aching” in his legs and a burning sensation in the soles
of both feet. The examiner indicated that there was some
weakness with extension of the lower leg in the left lower
extremity. The diagnoses included history of chronic low
back strain with evidence of neuralgia in the dermatomes of
L4-L5-S1 bilaterally, more prevalent on the left side than
the right.
A report of a contemporaneous examination by another examiner
reflects an assessment that includes lumbosacral degenerative
joint disease and musculoskeletal pain together with an
opinion that the veteran “may have a peripheral neuropathy
but the most likely cause of that is his diabetes.” The
examiner added, however, that “[n]erve conduction testing
would be helpful and further evaluation of that.” (Sic).
Apparently, according to a May 1996 entry in the claims file,
the RO attempted to contact the veteran in order to schedule
him for a number of examinations, including an examination of
the peripheral nerves. After unsuccessful attempts were made
to call the veteran, the examination was canceled.
Thereafter, in January 1997, the veteran was afforded a
neurological examination to determine if a relationship
existed between peripheral neuropathy and Agent Orange
exposure during service. The examiner concluded that the
veteran had mild peripheral neuropathy which he believed was
attributable to diabetes as opposed to exposure to Agent
Orange. The examiner, however, offered no opinion concerning
the likelihood that a low back disorder played a role in
producing the veteran’s peripheral neuropathy.
In light of the results of the February 1996 examinations and
the conclusion that month that nerve conduction studies would
be helpful in determining the etiology of the veteran’s
neurological symptoms, further neurological evaluation,
including nerve conduction studies, were warranted. Although
the RO apparently experienced some difficulty in scheduling
the veteran for further evaluations in May 1996, apparently
the veteran did present himself for a neurological evaluation
in January 1997. It is unclear why the examiner at that time
was not requested to provide an opinion concerning the
likelihood that a low back disorder played a role in giving
rise to the veteran’s symptomatology or why the veteran was
not scheduled for nerve conduction studies, as well. Further
neurological evaluation, including nerve conduction studies,
to determine the etiology of the veteran’s disability,
therefore, is warranted.
The Board observes that the veteran’s claim for an increased
evaluation for a low back strain is intertwined with his
claim for service connection for neuropathy because there is
a very real potential that the conclusion reached in the
latter service connection claim would have a meaningful
impact upon the former increased rating issue. Hoyer v.
Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board
defers appellate review of the claim for a rating in excess
of 20 percent for a low back strain pending completion of the
development and readjudication of the two intertwined issues.
The Board similarly defers adjudicating the issue of
entitlement to at total compensation rating based upon
individual unemployability.
Therefore, this case is REMANDED for the following
development:
1. The RO should request from the
veteran a comprehensive statement
containing as much detail as possible
regarding his alleged in-service
stressors while in Vietnam. The veteran
should be asked to provide specific
details of the claimed stressful events
during service, such as the dates,
locations, detailed descriptions of
events, units involved, and identifying
information concerning any individuals
involved in the events, including their
names, ranks, units of assignment, or any
other identifying details. The veteran
is advised that this information is
vitally necessary to obtain supportive
evidence of the stressful events and that
he must be as specific as possible
because without such details an adequate
search for verifying information cannot
be conducted.
2. With this information, the RO should
review the file and prepare a summary of
all the claimed stressors. This summary
and a copy of the veteran’s DD 214 and
all associated service documents, as well
as any stressor statements provided by
the veteran, should be sent to USASCRUR,
7798 Cissna Road, Suite 101, Springfield,
Virginia 22150-3197. USASCRUR should be
provided with a copy of any information
obtained above, and should be requested
to provide any additional information
that might corroborate the veteran’s
alleged stressors.
3. Following the receipt of a response
from USASCRUR, the RO must prepare a
report detailing the nature of any
stressor which it has determined is
established by the record. If no
stressor has been verified, the RO should
so state in its report. This report is
then to be added to the claims folder.
4. Thereafter, if and only if the RO
determines that the record establishes
the existence of a claimed stressor or
stressors, the RO should arrange for the
veteran to be accorded an examination by
a psychiatrist who has not previously
examined the veteran to determine whether
post-traumatic stress disorder is
present. The RO must specify for the
examiner the potential stressor or
stressors that it has determined are
established by the record and the
examiner must be instructed that only
those events may be considered for the
purpose of determining whether the
veteran was exposed to a stressor in
service. The claims folder should be
made available for review to the
examiner. If post-traumatic stress
disorder is diagnosed, the examiner
should specify whether there is a link
between the current symptomatology and an
in-service stressor. If post-traumatic
stress disorder is not diagnosed, the
examiner is requested to comment upon the
May 1997 opinion that the veteran suffers
from an adjustment disorder/maladaptive
reaction related to his experiences in
Vietnam.
5. The RO should also afford the veteran
a complete neurological evaluation,
including nerve conduction studies, to
determine the nature and etiology of any
neuropathy that may be present. The
examiner is requested to review the
claims file and offer an opinion as to
the extent that neuropathy is
etiologically related to a low back
disorder. If neuropathy is related to a
low back disorder, the examiner should
specifically identify the nature of the
low back disorder involved. The examiner
is also requested to offer an opinion as
to whether it is at least as likely as
not that neuropathy of the lower
extremities is etiologically related
complaints of transient paralysis in
service and whether it is at least as
likely as not that neuropathy of the
lower extremities otherwise had its onset
in service. The claims file must be made
available to the examiner for review.
6. The veteran should be afforded an
orthopedic examination to ascertain the
extent of any limitation of function
associated with the veteran’s low back
disability. The examiner should report
any limitation of range of motion and
should make findings concerning the
presence of pain on extended use. The
examiner is also requested to comment on
the extent to which the veteran’s low
back disability interferes with his
ability to sit or stand for extended
periods of time. Finally, the examiner
is requested to offer an opinion as to
whether any impairment of function of the
veteran’s low back is so severe as to
render him unable to pursue gainful
employment.
When the development requested has been completed, the case
should again be reviewed by the RO on the basis of all the
evidence. If the benefit sought is not granted, the
appellant should be furnished a supplemental statement of the
case, and be afforded the appropriate time period to respond
before the record is returned to the Board for further
review.
The purpose of this REMAND is to obtain additional
development. The Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable, at
this time. No action is required of the appellant unless he
is notified.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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